Activists looking to eliminate the sub-minimum wage for tipped employees — a practice that they say keeps workers in poverty, encourages sexual harassment and leads to racial discrimination — are taking a new approach in their campaign to end the two-tiered wage system in America: They’re arguing the lower tipped wage, sometimes as little as $2.13 an hour, violates the Civil Rights Act of 1964.
The first test of this strategy arrived Tuesday. One Fair Wage, a national worker-advocacy group, filed a federal complaint against Darden Restaurants Inc., one of the largest hospitality groups in the country, alleging that the company’s practice of paying tipped workers a sub-minimum wage causes them to suffer more sexual harassment than non-tipped workers and leads employees of color to earn less in tips than their White co-workers. The practice, the group argues, violates Title VII of the Civil Rights Act, which “prohibits employment discrimination based on race, color, religion, sex and national origin.”
Rich Jeffers, a senior director of communications for Darden, which includes such national chains as Olive Garden and the Capital Grille, said “these allegations are baseless” in a statement to The Washington Post. “Darden is a values-based company built on a culture of integrity and fairness, respect and caring, and a longstanding commitment to diversity and inclusion.”
One Fair Wage pursued its latest legal strategy on tipping after discovering a research paper written by an attorney who was pursuing a graduate degree at Harvard Law School. The paper made the argument that the sub-minimum wage violates the Civil Rights Act, based on tipping research conducted by, among others, professor Michael Lynn of Cornell University’s School of Hotel Administration.
The paper “resonated so strongly with what we had heard from workers for so long,” said Saru Jayaraman, president of One Fair Wage and a graduate of Yale Law School. It also fit into the larger cultural movement of many Americans coming to grips with the country’s long history of racial inequality.
The group decided to put the legal theory into practice by filing its complaint against Darden with the U.S. Equal Opportunity Commission. In the past, the organization has helped put forth successful ballot initiatives to eliminate the two-tiered minimum wage in several jurisdictions, including Michigan and Washington, D.C., only to have them undermined by legislatures and city councils. In 2018, the D.C. Council repealed Initiative 77, which passed with 55 percent of the vote and would have gradually eliminated the two-tiered system in the city.
“Obviously, it’s frustrating when legislators overturn the will of the people, not just in D.C., but in Michigan and Maine. We won it in all three places,” said Jayaraman. “I will say that the fact that we keep winning and the legislators have to keep overturning it should be a clear indication that there’s overwhelming public